Citation Nr: 0323231
Decision Date: 09/09/03 Archive Date: 09/23/03
DOCKET NO. 03-05 590 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Houston,
Texas
THE ISSUES
1. Entitlement to an effective date earlier than September
1, 2000 for the award of service connection for residuals of
gunshot wound to the abdomen, status post lysis of adhesions
and bowel obstruction.
2. Entitlement to an effective date earlier than September
1, 2000 for the award of service connection for venous
insufficiency of the right leg.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
ATTORNEY FOR THE BOARD
Michelle L. Nelsen, Counsel
INTRODUCTION
The veteran had active service from June 1965 to June 1968.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a July 2002 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Houston, Texas.
REMAND
The Board observes that the Veterans Claims Assistance Act of
2000 (VCAA),
38 U.S.C.A. § 5100 et seq. (West 2002), was enacted during
the course of the claim that underlies this appeal. Among
other things, it expanded VA's duty to notify the claimant
and his representative, if any, concerning certain aspects of
claim development. Specifically, the VCAA provides that,
upon receipt of a complete or substantially complete
application, VA must notify the claimant and his
representative, if any, of any information or lay or medical
evidence not previously provided that is necessary to
substantiate the claim. 38 U.S.C.A. § 5103(a). The notice
should indicate what information should be provided by the
claimant and what information VA will attempt to obtain on
the claimant's behalf. Id.
Review of the claims folder fails to reveal notice from the
RO to the veteran that complies with VCAA requirements. See
Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v.
Principi, 16 Vet. App. 370 (2002). The recitation of the
regulations implementing the VCAA in the January 2003
statement of the case does not satisfy the notice
requirements. A remand to the RO is required in order to
correct this deficiency. See Disabled American Veterans v.
Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir.
2003).
Accordingly, the case is REMANDED for the following action:
The RO should take the appropriate steps
to comply with the VCAA, to include
notifying the veteran and his
representative of any information or lay
or medical evidence not previously
provided that is necessary to
substantiate the claim and of what
information the veteran should provide
and what information VA will attempt to
obtain on his behalf. It should afford
the appropriate period of time for
response. If additional evidence is
secured, the RO should readjudicate the
issues on appeal and furnish the veteran
and his representative a supplemental
statement of the case if the disposition
of either claim remains unfavorable,
allowing the applicable time for
response.
Thereafter, the case should be returned to the Board for
final appellate review, if in order. The Board intimates no
opinion as to the ultimate outcome of the appeal. The
veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). No
action is required of the veteran unless notified.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory
Notes). In addition, VBA's Adjudication Procedure Manual,
M21-1, Part IV, directs the ROs to provide expeditious
handling of all cases that have been remanded by the Board
and the Court. See M21-1, Part IV, paras. 8.44-8.45 and
38.02-38.03.
_________________________________________________
V. L. Jordan
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2002).